Inquiry into tapes of gov. continues

Peter NicholasTimes Staff Writer

Investigators in the Schwarzenegger administration have persisted with a criminal inquiry into how his former opponent obtained audiotapes of the governor's private conversations, even after being told by the state's top law enforcement officer that no crime had been committed.

The California Highway Patrol investigation stretched past the Nov. 7 election and is now in its fourth month. Still, Gov. Arnold Schwarzenegger's administration has let stand public statements that Phil Angelides' campaign might have illegally hacked into the governor's computer system to embarrass him in the late stages of his reelection campaign.

With no sign that the CHP intends to press criminal charges, the affair has sparked questions about whether the governor's office misused a publicly funded law enforcement agency for political purposes.

There is little doubt that Schwarzenegger would have beaten state Treasurer Angelides in any case. But by opening an investigation and drawing it out, the Schwarzenegger administration deflected attention from the governor's comments about the blending of "black blood" and "Latino blood," and made the issue instead Angelides' campaign tactics, some political analysts said.

In late August, Angelides campaign aides plucked the audio from the governor's website. Portions of the recording were published by The Times in early September, two months before the election.

The files contained a casual conversation in which Schwarzenegger told aides that Assemblywoman Bonnie Garcia (R-Cathedral City) has a "hot" personality, and attributed her temperament to mixed blood.

Several weeks later, with the governor's race still underway, CHP investigators consulted state Atty. Gen. Bill Lockyer's office and were told that proving a crime with the evidence in hand would be impossible.

"You don't break and enter a business by walking in an open door during business hours," said Nathan Barankin, a spokesman for the attorney general's office.

The governor's computer system appeared to have been "quasi-open," he said. "That makes it very difficult to put together a prosecutable case."

Barankin said Lockyer's office made that point to investigators and had heard nothing since from the CHP, an arm of the governor's office responsible for state property. The investigation may not be completed until the end of December, at the earliest.

CHP officials declined to comment Wednesday.

The governor's communications director, Adam Mendelsohn, said: "It will be left to the CHP to determine whether a criminal act occurred. What we know happened was there was an unethical breach of security."

After the agency began its inquiry, a spokesman said the CHP would issue at least a preliminary report within a matter of weeks. That did not happen.

Some political analysts asked why the CHP was continuing its probe in the face of the attorney general's advice, and suggested that the Legislature should examine whether state resources were misused for political purposes.

"Any time you're using state resources in ways that look into the motives or behaviors of people engaged in political campaigns, you have to have a pretty good reason for doing it," said Larry Gerston, a political science professor at San Jose State and the author of a book on California politics and government.

"If there's an example of criminality, fine," Gerston said. "But it seems to me the attorney general ended that."

What Schwarzenegger said on the tapes sparked criticism of the governor. The episode also boomeranged on Angelides, as Schwarzenegger administration officials and campaign aides turned public attention on the tactics of the Democratic challenger.

The Republican governor's aides suggested that Angelides' campaign might have committed a crime, hacking into what they described as a private, password-protected part of Schwarzenegger's website.

Angelides campaign aides countered that they had done what any savvy web surfer could easily do -- copy material from a public site where security was lax. They said they were never prompted for a password when they downloaded the files, and never received any computer warnings that they were treading into restricted areas.

Some legal experts said they do not believe that the Angelides campaign did anything criminal.

Neville L. Johnson, a Los Angeles-area attorney whose firm specializes in privacy and media issues, told The Times that if a computer system lacks "safeguards," there can't be any hacking or crime.

It is unclear where the CHP investigation is headed. CHP officers interviewed two Angelides campaign aides about the episode in September, but never followed up with the campaign.

The agency has said that there are two parts to their investigation: one to see if a crime was committed, and the other, to shore up the governor's computer system so private material is protected.

CHP officials have not contacted the Sacramento County district attorney's office, which would prosecute a criminal case if the CHP pursued that course, an aide to Dist. Atty. Jan Scully said.

Angelides campaign officials say they possess about 100 more hours of the governor's conversations and other material. With the investigation looming over them, the aides have been afraid to make the material public.

People who have listened to those conversations say that Schwarzenegger is heard making sharply critical comments about Senate President Pro Tem Don Perata (D-Oakland), who will be involved in prolonged negotiations with the governor in the coming months about healthcare and other issues.

Schwarzenegger's office has repeatedly turned down requests for the recordings under the Public Records Act, saying that the governor's private conversations are confidential.

One of Angelides' aides questioned by the CHP three months ago, Dan Newman, said he was considering legal action against the Schwarzenegger administration. Newman said he wanted to find out through a civil suit "what the governor's office knew and when it knew it -- and if they misused taxpayer-funded law enforcement."

The conversations at issue were recorded by the governor's staff.

His speechwriting team wanted a better fix on the governor's unique speech patterns and taped him as he chatted with aides in his office.